Windsor v. US

I'm glad that the Second Circuit trashed the Defense of Marriage Act today (pdf), but I'm a particular fan of how they did it. A little secret about the law is that outcomes in court cases matter a lot less than how the outcome is reached. Ok, I admit; that's less of a secret and more of a wildly controversial claim. After all, who really relies on stare decisis outside of confirmation hearings?

But I digress. Edith Windsor's long term partner and spouse under New York State law passed away, leaving an inheritance to her widow. The IRS taxed the estate, leaving Ms. Windsor a tax bill of roughly $383,000. Had Ms. Windsor's spouse been of the opposite sex but all other facts concerning their union been similar, the inheritance would have been exempt from the estate tax.

This sex-based divergence in outcomes forms the basis for Ms. Windsor's equal protection claim. The Southern District of New York decided in Ms. Windsor's favor, but did so on a 'rational basis' test. The rational basis test requires that a law be "rationally related" to a "legitimate government interest." Poll taxes could meet this level of scrutiny. Almost any law can meet a rational basis test, which is why it is considered the lowest standard of scrutiny for Equal Protection and Due Process claims. However, the Defense of Marriage Act was not able to meet this standard at the trial court level, and was dismissed.

The danger of allowing sex and gender discrimination to be decided at the rational basis level is that "rationally related" and "legitimate government interest" are innately squishy phrases. If there were a consensus view in a particular region among cultural  and judicial elites that solidifying a specific set of gender norms constituted a "legitimate government interest," it would follow that legalizing sex-based pay disparities would be a "rationally related" method of incentivizing behavior.

Revisiting Repeal- the 14th Amendment

The recent furor over the 14th amendment caught pretty much everybody by surprise, and most commentators wrote it of as a nativist push to expunge Birthright citizenship from the Constitution.  This explanation certainly has some truth to it, and it fits the overarching narrative of the Tea Party as a disorganized band lacking the discipline to stick to realistic policy demands. The repeal-the14th push was given voice by far-right politicians who have been attempting to please the energized right wing.

But I suspect there might be something more important at play.  Maybe I'm still reeling from paranoia after reading the New Yorker (subscription) article profiling the Koch Brothers network of influence.  In the wake of that article, I would find it hard to believe that any 'spontaneous' outpouring of support from Tea Party activists and paid organizers is anything other than a coordinated effort... at something.